Devanand S/O Rajaram Junjare vs Pramod S/O Dinkar Sonar
2017 Latest Caselaw 9589 Bom

                                              1                      CriWP 564/2016

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD



               CRIMINAL WRIT PETITION NO. 564 OF 2016


Devanand S/o Rajaram Junjare, Aged 55                                  PETITIONER
Years, Occupation Service, Resident of 
Chattrapati   Shivaji   Nagar,   Sillod, 
Taluka Sillod, District Aurangabad

V E R S U S

Pramod   S/o   Dinkar   Sonar,   Aged   55                             RESPONDENT
Years,   Occupation   Agriculture, 
Resident of Jai Bhavani Nagar, Sillod, 
Taluka Sillod, District Aurangabad

                                        
         Mr. S.G. Nandedkar, Advocate, holding for
      Mr. D.Y. Nandedkar, Advocate for the Petitioner
       Mr. V.D. Sonawane, Advocate for the Respondent


                                         CORAM : T.V. NALAWADE, J.

DATE : 13th DECEMBER, 2017

ORAL JUDGMENT :

This petition is filed to challenge the order

made by learned Judicial Magistrate, First Class,

Sillod, in Criminal Misc. Application No. 611 of 2015.

2. Both the sides are heard.

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3. Criminal Misc. Application No. 611 of 2015

was filed by the petitioner for condonation of delay

of eight days caused in filing complaint for the

offence punishable under Section 138 of Negotiable

Instruments Act. In support of the contentions made in

the application, affidavit of the complainant-

applicant was filed on 1st July, 2015. The learned

Judicial Magistrate, First Class dismissed the

complaint on 25th November, 2015, by observing that the

complainant and his Advocate were not present before

the Court and no record was produced to substantiate

the contentions made in the application for

condonation of delay.

4. The learned counsel for the petitioner has

produced copy of Roznama showing that he had filed

affidavit in support of the contention on 1 st July,

2015 and according to him after filing of the

affidavit, respondent had to file reply, but he failed

to file the same. The learned counsel has produced on

record some papers of Krushna Clinic, Akola in respect

of daughter of applicant showing that she was

3 CriWP 564/2016

suffering from Hepatitis-B and she was pregnant at the

relevant time when he was expected to file complaint.

Thus, he has the record and he had filed affidavit in

that regard. It can be said that only due to absence

of the complainant and his Advocate, the order of

dismissal of delay condonation application came to be

passed. It is the case of dishoour of cheque and delay

could have been condoned if sufficient cause is shown.

5. It appears that the petitioner-complainant

ought to have remained present for verification of

contents of the affidavit before the Court, but he did

not remain present. He is resident of Sillod. In

that regard also, the contentions are made by the

petitioner in the application. It can be said that

many times necessary instructions are not given by the

Advocate to the client in this regard. The client

cannot be made to suffer due to such lapse on the part

of the Advocate. In view of this circumstance, this

Court holds that an opportunity is necessary to be

given to the petitioner to get the decision on the

application filed for condonation of delay on merits.

4 CriWP 564/2016

This Court holds that the impugned order needs to be

set aside and matter needs to be remanded back to the

trial Court for fresh consideration of the

application.

6. According to the learned counsel for the

respondent, due to the lapse on the part of the

petitioner-complainant, the respondent is required to

spend more on present proceeding and, this

circumstance may be considered.

7. In view of the amount of cheque and aforesaid

circumstances, this Court holds that the petitioner is

liable to pay costs of Rs.3,000/- of the present

proceeding.

8. In the result, the petition is allowed

subject to deposit of costs of Rs.3,000/- in this

Court, within 15 days from today. If the amount, as

directed, is deposited, the order passed by the

learned Judicial Magistrate, First Class, Sillod dated

25th November, 2015, is to be treated as set aside and

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matter is to be remanded back to the learned Judicial

Magistrate, First Class, for fresh consideration.

Costs to be paid to the respondent.

Parties to appear before the learned Judicial

Magistrate, First Class on 10th January, 2018.

9. Petition is allowed in aforesaid terms.

( T.V. NALAWADE, J. )

SRM/13/12/17